Utah among several states with marriage laws under legal challenge

I have said before that I believe marriage has traditionally been and is defined as between a man and a woman, and I hope the sanctity of that age-old institution will remain protected—Gov. Gary Herbert

SALT LAKE CITY — The lawsuit filed by three-same sex couples Monday in Utah is among several legal challenges to states' laws on marriage across the country.

Gay and lesbian couples seeking the right to marry or to have their existing marriages recognized where they live have federal or state court cases pending in at least seven other states.

Lawsuits in Utah and New Mexico were the latest to be filed.

Two Salt Lake County couples and one Wasatch County couple are challenging the Utah law that says marriage consists only of the legal union between a man and a woman. One of them, a lesbian couple who was legally married in Iowa, claims state law bars them from being treated the same as heterosexual couples because it does not recognize their marriage as valid.

The lawsuit asks a federal judge to declare the Utah law unconstitutional under the due process and equal protection clauses of the 14th Amendment. It seeks a permanent injunction preventing the state from enforcing its prohibition on same-sex marriage.

A lawyer for the couples, James Magelby, said the lawsuit is not a "political or attention-seeking publicity stunt. Rather, it is a legal matter about equal protection under the law, and we intend to win this case on the law and the facts, which will be developed through the litigation."

Magelby's statement came through a Utah organization called Restore Our Humanity, which announced last week it had assembled a legal team to challenge the state's same-sex marriage ban.

Utah Attorney General John Swallow said he believes states retain the sole right to define marriage under the U.S. Constitution.

"As attorney general, I swore an oath to defend the Utah Constitution and will do so by by defending against the lawsuit with every resource at my disposal," he said.

Utah voters in 2004 approved an amendment to the state Constitution defining marriage as solely between a man and a woman. The amendment also states that no other domestic union, however denominated, may be recognized as a marriage or given the same or substantially equivalent legal effect.

Last week in New Mexico, the American Civil Liberties Union filed a lawsuit on behalf of two lesbian couples aimed at forcing the state to recognize same-sex marriage under current New Mexico law. The suit claims the state's ban on same-sex marriage violates the New Mexico Constitution.

The Utah and New Mexico cases came this week as the U.S. Supreme Court hears arguments on California's ban on same-sex marriage and the federal Defense of Marriage Act. There are also federal court cases in Hawaii, Michigan and Nevada and state cases in Illinois, Minnesota and New Jersey.

"It's my hope that the Supreme Court will either rule broadly that the states have the right to define marriage or take a narrow approach that would allow states that have not sanctioned same-sex marriage to continue to define the marriage relationship," Swallow said.

Gov. Gary Herbert, who along with Swallow and Salt Lake County Clerk Sherrie Swensen are named as defendants in the Utah case, reiterated his stance on marriage Tuesday.

"I have said before that I believe marriage has traditionally been and is defined as between a man and a woman, and I hope the sanctity of that age-old institution will remain protected," he said.

Tara Borelli, a lawyer with the national gay and lesbian rights organization Lambda Legal, said the question in pending legal cases is whether it's constitutional to restrict access to marriage based on sexual orientation.

"The federal Constitution sets a floor below which no state can fall when determining eligibility for marriage," she said.

States have some variation in eligibility requirements such as the age at which people can marry, she said. "But it has always been the case that the limits they set must meet basic constitutional guarantees set by the 14th Amendment."

In Nevada, which has a domestic partnership law, 16 gay and lesbian couples sued for the right to marry or have their marriages recognized in that state.

A federal judge ruled last fall that the state has as rational basis for maintaining a distinction between domestic partnerships and marriage and closed the case. Lamba Legal, which represents the couples, appealed the decision.

The Nevada lawsuit seeks a declaration that states that have adopted domestic partnerships or civil unions for same sex-couples have failed to provide equal protection under the Constitution by not going the next step to allow same-sex marriage.